IN THE CASE OF:  	  

		BOARD DATE:  	  2 April 2015

		DOCKET NUMBER:  AR20140014682 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his discharge from under other than honorable conditions (UOTHC) to an honorable discharge (HD).

2.  The applicant states he was told when he was in Korea that some of his friends were wrongly enlisted in the military service; therefore, he believes he was also wrongly enlisted on active duty.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant served in the Army National Guard from 23 June 1978 to 
25 September 1979, and received a general discharge (GD).  

3.  On 26 September 1979, the applicant was transferred to the United States Army Reserve and involuntarily ordered to active duty.  After completing initial entry training, he was awarded military occupational specialty 63B (Light-Wheel Vehicle Mechanic). 

4.  His DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) from 26 September through 8 October 1979.

5.  He was also AWOL from 6 June 1980 to 15 October 1980 when he was apprehended by civilian authorities and returned to military authorities.

6.  On 21 October 1980, the applicant received a mental status evaluation from the Chief Physical Service Officer at Reynolds Army Hospital and was psychiatrically cleared for administrative action.

7.  On 28 October 1980, the applicant was pending a court-martial for being AWOL for 131 days.  On the same day, the applicant signed an admission of AWOL for administrative purposes knowingly, willingly, and voluntarily acknowledging his AWOL status.  

8.  The applicant consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum punishment authorized under the Uniform Code of Military Justice (UCMJ) and of the possible effects of a UOTHC discharge if a request for discharge for the good of the service in lieu of trial by court-martial were approved. 

9.  After consulting with counsel, the applicant voluntarily requested a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

a. He acknowledged that:

* he could request discharge for the good of the service because charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge
* he was guilty of the charges against him or of lesser-included offenses therein contained that also authorized the imposition of a bad conduct or dishonorable discharge
* he understood he could be discharged UOTHC
* as a result of such a discharge, he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge

	b.  He indicated he would not submit a statement in his own behalf.

10.  On 13 November 1980, the applicant's request was approved by the separation authority, and on 21 November 1980, he was discharged with his service characterized as UOTHC.   

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an HD or GD was authorized, a UOTHC discharge was normally furnished an individual who was discharged for the good of the service.

	b.  An HD was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. 

	c.  A GD was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant does not provide any supporting documentation that supports his claim that he was wrongly enlisted.  

2.  The available records show the applicant was AWOL for a period of 13 days and 131 days, and pending a court-martial for being AWOL.  Therefore, the type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 

3.  Based on the applicant's two periods of AWOL and his admission of guilt, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD or an HD.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   x_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20140001770



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ABCMR Record of Proceedings (cont)                                         AR20140014682



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